Sound and Fury

UPDATED: below

The radical left is clamoring for the House to impeach Attorney General Alberto Gonzales. Less clear is what, exactly, qualifies as "Treason, Bribery, or other high Crimes and Misdemeanors", the Constitutional standard for impeachment. The impeachment resolution introduced by Congressman Inslee doesn't say. The theory cited most often is perjury in testifying before Congress about the terrorist surveillance program, the related "data mining" program, and a supposed bed-side visit to an ill Attorney General Ashcroft. But other arguments include the firing of several U.S. attorneys, "election fixing" (whatever that is), and changes to the DoJ's election crimes manual, with some advocating appointment of a special prosecutor instead of impeachment.

Conservatives have little love for Mr. Gonzales; he is an ineffective AG, and I've argued he should resign or be fired. Still, the perjury claims are so complex and contradictory -- not to mention largely underwhelming -- that even liberal WaPo reporter Ruth Marcus downplays the Dems' prospects. As do I, partly because analysing and evaluating the testimony and counter-charges would require "a massive declassification of these classified and presumably ongoing programs" which neither Congress nor the Courts are likely to demand.

So this post is limited to three points:

1. Assuming illegality: Most anti-Gonzales advocates want the Attorney General's head because they believe the surveillance and mining programs were illegal. As Salon's Glenn Greenwald concedes:

   The NSA scandal is not now and never has been about perjury. It is about highly illegal spying activities by our government on American citizens.

   So much for the presumption of innocence--as I have shown, the courts have not agreed with the left, and law and logic favor the Administration. With the wiretapping and mining not clearly prohibited, removing a member of the President's Cabinet -- which has never been done -- is virtually impossible.



2. Change-out is cool: Arguments that the replacement of eight or nine U.S. attorneys was impermissibly partisan are wholly mistaken, as I've shown:

   U.S. Attorneys are not civil servants--they are Presidential appointees who are "subject to removal by the President." 28 U.S.C. § 541(c) (2006). So this is an area where "playing politics" is not only acceptable, but intended--President Clinton had all 93 U.S. Attorneys resign when Janet Reno took office in March 1993 and replaced 89 of them within two years. If they could be fired in 2001, they could be fired last year.

   And the newly appointed U.S. attorneys haven't been shy about fighting voter fraud. Does Senator Clinton really want to make Presidents retain their predecessor's U.S. Attorneys?



3. Can't compel: The Congress can't force further appearances by Gonzales or by other Administration officials. The House Judiciary Committee subpoenaed Harriet Miers and Josh Bolton and found both in contempt when the Justice Department balked on grounds of Executive Privilege. But, contrary to the Congress, the Administration's arguments are solid; Congress demanding the Attorney General be prosecuted -- ordering a DoJ lawyer to nail his boss -- is absurd and an unconstitutional assault on separation of powers.
   
   The core of the President's case is -- as shown above -- that the removal of U.S. attorneys is by statute an Executive function (the Senate only accepts or rejects nominations). Cf. In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) (documents generated in course of advising the President about authority to appoint and remove are tied to "a quintessential and non-delegable Presidential power"). As reiterated by the Clinton Administration and previous Presidents, in areas committed to the Executive, intra-Executive branch discussions have the strongest claim to privilege, because they are beyond the province of Congress. And that vitiates legislative impeachment and most claims of contempt. See Barenblatt v. United States, 360 U.S. 109, 111-12 (1959) ("Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government.").
   
   Still skeptical of me or the Supremes? OK, read this 1999 analysis:

   While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.
   
   Courts have recognized a "presumptive privilege" for presidential communications that is grounded in "a President’s generalized interest in confidentiality" and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to "explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is "inextricably rooted in the separation of powers under the Constitution" and "flow[s] from the nature of enumerated powers" of the President. Id., 418 U.S. at 705; 121 F.3d at 743.
   
   According to a recent D.C. Circuit case, "[t]he President can invoke the privilege when asked to produce documents or other materials that reflect Presidential decision making and deliberations and that the President believes should remain confidential." Id., 121 F.3d at 744. As to the scope of this privilege, the court found, in the context of the criminal proceeding, it to cover "communications made by presidential advisers in the course of preparing advice for the President, . . . even when these communications are not made directly to the President." Id. at 751-52.

   The author of that quote?--Senator Patrick Leahy.

Conclusion: The current clamor for contempt, prosecution or impeachment of Alberto Gonzales -- some would impeach Bush and Cheney too -- generates sparks, but no flame. The baying lefty bloggers and fishing Congressional Democrats were anticipated in Shakespeare's Macbeth, Act V, Scene 5:

a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

UPDATE:

This piece was written as a response to a thread on Cannablog; however, I'm no longer able to comment there and apparently have been banned from that lefty blog.

MORE:

Looks as if I can comment on Cannablog--I'll await a reply.

MORE & MORE:

I guess research and a reasoned reply was too much to expect. I'm done debating Whig. Will someone please send in a thoughtful liberal?